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Paid Parental Leave: an Investigation and Analysis of Australian Paid Parental Leave Frameworks with Reference to Selected European OECD Countries

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Paid Parental Leave: an Investigation and Analysis of Australian Paid Parental Leave Frameworks with Reference to Selected European OECD Countries The University of Notre Dame Australia ResearchOnline@ND Theses 2018 Paid parental leave: An investigation and analysis of Australian paid parental leave frameworks with reference to selected European OECD countries Greg Lynn The University of Notre Dame Australia Follow this and additional works at: https://researchonline.nd.edu.au/theses Part of the Law Commons COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING The material in this communication may be subject to copyright under the Act. Any further copying or communication of this material by you may be the subject of copyright protection under the Act. Do not remove this notice. Publication Details Lynn, G. (2018). Paid parental leave: An investigation and analysis of Australian paid parental leave frameworks with reference to selected European OECD countries (Master of Laws by Research). University of Notre Dame Australia. https://researchonline.nd.edu.au/theses/225 This dissertation/thesis is brought to you by ResearchOnline@ND. It has been accepted for inclusion in Theses by an authorized administrator of ResearchOnline@ND. For more information, please contact [email protected]. The University of Notre Dame Australia School of Law PAID PARENTAL LEAVE: AN INVESTIGATION AND ANALYSIS OF AUSTRALIAN PAID PARENTAL LEAVE FRAMEWORKS WITH REFERENCE TO SELECTED EUROPEAN OECD COUNTRIES Greg Lynn LLB (Murdoch University) MA (The University of Notre Dame Australia) This thesis is submitted in fulfilment of the requirements of the Degree of Master of Laws by Research 2018 DECLARATION This thesis does not, to the best of my knowledge, contain previously published or written material by another person except where due reference is made in the text, or any other material previously submitted for a degree in any other higher education institution. Greg Lynn Date i ACKNOWLEDGEMENTS Love righteousness, you rulers of the earth, think of the Lord with uprightness, and seek him with sincerity of heart; because he is found by those who do not put him to the test, and manifests himself to those who do not distrust him.1 First and foremost, I wish to thank The University of Notre Dame Australia Fremantle School of Law for making this thesis possible. The School of Law has consistently shown interest in the area of research undertaken in this thesis, particularly through the generous funding of this research through the 2014-2018 HDR RTS government research grant program which gave me the financial resources and the opportunity to do conduct my research. I have found Notre Dame to be a supportive and nurturing environment as a student in my time studying and researching there for the duration of this project. Secondly, I wish to particularly thank my academic supervisor Professor Joan Squelch for her spirit of open generosity and valuable input which has guided this thesis from beginning to end and without which this project would not have been possible. Professor Squelch was the first person to suggest my original rough ideas on parental leave in Australian employment law had the potential to become a major research project in its own right and encouraged me to formulate my ideas in a rigorous way in a Master of Laws degree. Professor Squelch has always been particularly generous with her time and patient with me as a student given her demanding roles as Dean and research supervisor in the Law School at Notre Dame. The author of this thesis cannot thank Professor Squelch enough for her professionalism, insight, support, clarity along with her invaluable feedback given by her on many occasions to this student. I would also like to thank the staff of the Employment Law Centre of Western Australia for their continuous support for this project. I would like to particularly my supervisors Ms Toni Emmanuel, Ms Jessica Smith, and Ms Anna Creegan 1 Wisdom of Solomon, 1:1-1:2. ii of the Employment Law Centre of WA. These solicitors were generous to me in providing resources and time to complete this project and access to an excellent Industrial Law Case library which was essential to writing this thesis and also in providing me with valuable feedback on case law and legislation relating to employment law and paid parental leave. It is my hope this thesis will repay their support in a small way to helping create more gender-equal workplaces in Australia in the future where work and family are equally at home. I also wish to thank my family for their patient support through this project, particularly my father and mother Andrew and Nereda Lynn and my brothers Tim and David, who have always supported me in my academic studies and have also helped me in more ways than can be mentioned here. Having grown up in a ‘legal’ household where we discussed cases and trials and where I sat in on court cases in my school holidays, only they truly know what it is like to get entangled with the law and its strange tangents and the long-suffering sacrifices involved. I owe a special thanks of gratitude to them both. I wish to also thank Ms Linda Browning from Curtin University for her thesis copy-editing and formatting services. Any remaining errors remain my responsibility. iii TABLE OF CONTENTS DECLARATION ................................................................................................. i ACKNOWLEDGEMENTS ................................................................................ ii TABLE OF CONTENTS .................................................................................. iv TABLE OF FIGURES ..................................................................................... viii LIST OF TABLES ............................................................................................. ix LIST OF DEFINED TERMS ............................................................................. x LIST OF ABBREVIATED TERMS ................................................................. xi ABSTRACT .................................................................................................... xiii CHAPTER 1 INTRODUCTION AND STATEMENT OF THE RESEARCH PROBLEM ......................................................................................................... 1 1.1 Introduction ............................................................................................... 1 1.2 Statement of the Problem .......................................................................... 2 1.3 Background Discussion and Scope of the Research ................................. 4 1.4 Research Questions ................................................................................. 11 1.5 Research Aims ........................................................................................ 11 1.6 Research Framework .............................................................................. 12 1.7 Research Methodology ........................................................................... 14 1.7.1 The Use of Internet-Based Materials ............................................... 15 1.7.2 The Use of Foreign Legal Materials in English Translation ........... 16 1.8 Thesis Structure ...................................................................................... 16 1.9 Conclusion .............................................................................................. 18 iv CHAPTER 2 POLICY FRAMEWORKS AROUND PARENTAL LEAVE IN AUSTRALIA .................................................................................................... 21 2.1 Introduction ............................................................................................. 21 2.2 Economic Policy Frameworks: The Costs of Gender Inequality in the Workplace ..................................................................................................... 23 2.3 Structures of Workplace Gender Inequality in Australia ........................ 28 2.4 Economic Factors Driving Gender Inequality in Australia .................... 33 2.5 The Impact of Neoliberal Policies in Australian Labour Law ................ 37 2.6 Social Policy Frameworks for Parental Leave ........................................ 42 2.7 Australian Human Rights Commission Inquiries into Gender-Based Workplace Discrimination and Paid Parental Leave .................................... 43 2.8 The AHRC 2014 Report into Workplace Discrimination Against Working Parents ........................................................................................................... 56 2.9 The 2009 Productivity Commission Final Inquiry Report into Paid Parental Leave ............................................................................................... 67 2.10 The Productivity Commission Inquiry Final Policy Recommendations ....................................................................................................................... 78 2.11 Conclusion ............................................................................................ 80 CHAPTER 3 HISTORY AND DEVELOPMENT OF PARENTAL LEAVE IN AUSTRALIA .................................................................................................... 85 3.1. Introduction ............................................................................................ 85 3.2. The Harvester Case and the Social Wage .............................................. 86 3.3. Key Collective Bargaining Decisions .................................................... 97 3.3.1 The Maternity Leave Case ............................................................... 98 v 3.3.2 The 1969
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